FCC Upholds 'NYPD Blue' Fines; ABC Appeals To 2nd Circuit Court

Network pays $1.24M in fines, appeals 'arbitrary and capricious' order

WASHINGTON, D.C. - The FCC has ordered 45 ABC television affiliates to pay fines of $27,500 each for airing the Feb. 2003 episode of "NYPD Blue" that included a shot of a woman's naked buttocks. ABC paid the $1.24 million in fines in full today in order to challenge the decision in the 2nd Circuit Court of Appeals.

"ABC contends that the FCC order is arbitrary and capricious, contrary to the
commission's own standards and past decisions, and in violation of the indecency
statute and the First Amendment," the network said in a statement today.

The FCC originally issued the fines against 52 stations on Jan. 25. The stations appealed the fines, but the FCC rejected the appeal for all but a handful of them Tuesday on grounds that "the depiction of an adult woman's naked buttocks was sufficiently graphic and explicit to support an indecency finding."

The FCC forfeiture order states: "She is not wearing a g-string or other clothing," , "nor are the shots of her buttocks pixilated or obscured. Thus, the material is sufficiently graphic and explicit to support an indecency finding. Although the partial views of her naked breast from behind and from the side are not sufficiently graphic and explicit in and of themselves to support an indecency finding, they also add somewhat to the first factor's weight here.

"In context and on balance," the order concluded, "the graphic, repeated, pandering, titillating and shocking nature of the scene's visual depiction of a woman's naked buttocks warrant a finding that it is patently offensive under contemporary community standards for the broadcast medium, notwithstanding any artistic or social merit and the presence of a parental advisory and rating. Therefore, it is actionably indecent."

ABC affiliates for which the FCC cancelled the fine were: Northeast Kansas Broadcast Service's KTKA-TV; KFBB for KFBB-TV; Louisiana Television Broadcasting for KBRZ-TV; WXOW-WQOW Television for WXOW-TV; KMBC Hearst-Argyle Television for KMBC-TV; KHBS Hearst-Argyle Television for KHOG-TV; and Forum Communications for WDAY-TV.

The FCC said the statute of limitations had expired for two stations because they had renewed their licenses in the intervening years, and others were exempted from the fine because no complaints had come from the markets in which they were located.

For the rest of the stations, the FCC refuted arguments that the 17 days they were given to respond to the initial notice of apparent liability was not enough time, noting that although it customarily provides 30 days, it is not required to do so. Furthermore, it suggested that the stations had demonstrated the time allotted was ample, in that "20 law firms and/or companies coordinated and responded to the NAL in one consolidated, 70-page brief, with exhibits, on behalf of the majority of ABC-affiliated stations."

In response to an argument by Gray Television that its translator station should not fined on top of its originating station, which itself essentially was retransmitting the signal, the FCC said translators are not de facto immune from the fines.

"The decision is disappointing," said Wade Hargrove, counsel for the ABC affiliates. "I'm sure that affiliates will assess the options now available to them. It is encouraging that the commission dismissed a number of complaints for failure to comply with the commission's requirements for the submission of complaints against broadcast stations."